Voting gets its day in court

Sweeping voting changes rushed into law by state lawmakers last summer will face a critical test next week when a federal judge in Winston-Salem considers constitutional challenges to their viability.

On Monday morning, U.S. District Judge Thomas D. Schroeder, appointed to the court by then-President George W. Bush in 2008, will consider evidence and arguments in hearings expected to last at least a week.

At issue will be House Bill 589, dubbed the “monster voting bill” by voting rights advocates and uniformly called one of the most restrictive election laws in the nation.

Four different groups of challengers have sued the state over those changes, contending that they violate Section 2 of the Voting Rights Act as well as the 14th, 15th and 26th Amendments to the Constitution:

– The North Carolina NAACP, several churches and individual plaintiffs led by 92-year-old Rosanell Eaton in NC State Conference of the NAACP v. McCrory;

– A group of organizations and individual plaintiffs led by the state League of Women Voters in League of Women Voters of North Carolina v. North Carolina;

– A group of students who have intervened in the League of Women Voters case and

– The U.S. Department of Justice in U.S. v. North Carolina.

Attorneys, parties and witnesses in those cases will crowd the courtroom and present evidence, with the challengers hoping to convince Schroeder that the law should be blocked for the November 2014 elections and state defendants looking to have the case dismissed.

The court has already received hundreds of documents, witness statements and expert reports filed by the parties, and more are expected during the hearings. Schroeder has given each side 18 hours to present their proof, and voters, state lawmakers and election law experts will fill that time.

Here’s a snapshot of what you need to know about the proceedings ahead.

How we got here

As initially passed by the House in April 2013, H589 imposed only a voter ID requirement. It then sat seemingly dormant in the Senate until late June, when the U.S. Supreme Court gutted the preclearance requirement under Section 5 of the Voting Rights Act in Shelby County v. Holder.

“Now we can go with the full bill,” Sen. Tom Apodaca, alluding to the fact that the state would no longer have their voting changes preapproved.

How House Bill 589 changes voting in North Carolina

Shortens the early voting period from 17 to 10 days.

Eliminates same-day registration, which allowed qualified voters to register and vote in one visit to a “one-stop” early voting site.

Prohibits counting of out-of-precinct ballots. Previously, a voter who attempted to vote in a precinct other than the one to which he was assigned (but that was located in his county of residence) was allowed to cast a provisional ballot, which was counted for all of the elections that would have appeared on the voter’s ballot if he had gone to his assigned precinct.

Eliminates pre-registration of 16- and 17-year-olds who became automatically registered when they turned eighteen.

Expands use of poll observers and voter challenges. Before HB 589, each political party could have no more than two observers in the voting enclosure at any time, and both had to be registered in the same county; challenges before Election Day could be made only by citizens registered to vote in the same county; and Election-Day challenges could only be made by voters registered in the same precinct. Under HB 589, ten new “at-large observers” can now travel to any polling place in a county, and can be stationed at any time to join the two site-based observers within the voting enclosure; any registered voter in the state can challenge any other person’s right to register or vote before an election; and Election-Day challenges may be issued by any registered voter in the county.

Requires in-person voters to show one of a few specific types of unexpired photo IDs before voting, beginning in 2016. In 2014, however, H589 mandates a soft rollout requiring that voters be asked if they have acceptable ID and if not, sign an acknowledgment form, which will be a public record.

The full bill, unveiled in late July with just days left in the session, sailed through both chambers of the General Assembly.

In addition to imposing voter ID requirements, HB 589 eliminated a week of early voting, banned same day registration during the remaining period, and prohibited counties from counting provisional ballots cast outside a voter’s assigned precinct.

It also expanded the ability of partisan groups to send monitors to the polls and to challenge voters (allowing 10 additional at-large observers in a county).

Just as quickly, two groups – one led by the North Carolina State Conference of the NAACP and another by the NC League of Women Voters — filed separate complaints in federal court in Winston-Salem seeking to overturn the law.

The Justice Department followed a month later with its own action, seeking not only to invalidate the law but also to bail the state into preclearance under the rarely used Section 3 of the Voting Rights Act. Bail-in relief would once again require North Carolina to obtain approval for any voting changes from either the Department or the federal court in Washington, D.C.

Since then the parties have largely been engaged in a tug-of-war over the disclosure of documents and information generated by lawmakers, who have invoked protection under a very broad interpretation of legislative privilege.

Peake ruled that at least some of the communications sought were not absolutely protected — communications with constituents or other third parties, for example – and should be produced.

The judge also held that other documents might likewise have to be disclosed if the need for them in the voting rights context outweighed any intrusion on the legislative process.

In an order in mid-May, U.S. District Judge Thomas D. Schroeder upheld the magistrate’s ruling.

Despite that order, the state defendants are still refusing to produce emails with staff and with state agencies and other third parties.

What the parties want

Judge Schroeder has already set the case for trial in the summer of 2015.

The challengers have asked the court in the meantime to block its enforcement so that the November 2014 elections can proceed under voting laws in effect during the 2012 elections.

Practically speaking, that would mean that same-day voter registration would continue, out-of-precinct provisional voting would be allowed, and early voting would take place over 17 days, as opposed to the ten days set in H589. County Boards of Election would still be allowed to keep polls open an extra hour and 16- and 17-year-olds could still be pre-registered to vote.

And though the voter ID provisions of H589 do not go into effect until 2016, the challengers have asked that the “soft roll-out” of voter ID — asking voters for identification in 2014, allegedly to prepare them for that upcoming requirement — be stopped, saying that it confuses and intimidates voters.

The state defendants, on the other hand, have asked the court to enter judgment in their favor, saying that the underlying arguments asserted by the Justice Department and other challengers are legally deficient.

Challengers’ arguments in a nutshell

In order to persuade Judge Schroeder to block enforcement of H589, the challengers will have to convince him that they’re likely to prevail on the merits at trial in 2015 and that without such relief in the interim they’ll be harmed.

They argue in court filings that H589 violates Section 2 of the Voting Rights Act because its provisions burden voting opportunities disproportionately relied upon by African-American and other minorities – and lawmakers knew that when they rushed the bill to passage.

Compared to white voters, African American voters were far more likely to vote early. In 2008, for example, 70 percent of all African American voters used early voting, compared to just 51 percent of white voters. These numbers were almost identical in 2012—70 percent and 52 percent, respectively.

During the 2012 elections, African Americans were also over 35 percent more likely than white voters to register to vote using same-day registration, and twice as likely to cast out-of-precinct provisional ballots.

The challengers also contend that the law’s known disproportionate burdens on African Americans and its rushed passage by lawmakers without any justified rationale evince an intent to depress minority voter turnout in violation of the 14th and 15th Amendments.

The same argument applies to the restrictions H589 places on young voters, which violate the 26th Amendment.

The harm from enforcing H589 in the face of a ruling that the law is unconstitutional is self-evident, the challengers add.

“If this law is subsequently found unconstitutional, eligible voters who were denied their vote in the midterm elections won’t get a do-over,” Dale Ho, director of the ACLU’s Voting Rights Project and one of the attorneys for the challengers said in a statement. “The damage will have been done. That’s why this law needs to be set aside. Voters have a fundamental right to participate in our democracy.”

State arguments in a nutshell

The state defendants cast H589 in a stark light, contending that none of its provisions deprive minority voters of an equal opportunity to vote – the touchstone, they say, of a Section 2 violation.

“There is no neutral practice here that prevents them from electing their candidate of choice, or registering, or voting on the same terms and conditions as other members of the electorate,” they contend in court filings. “Instead, each and every voter has the ability to control his or her own conduct as it relates to registering to vote and voting according to the rules that apply to everyone.”

They argue that increased minority voting during the 2014 primary elections – when all of the challenged provisions other than voter ID were in effect – establishes that H589 does not and will not disproportionately burden African American turnout.

With the help of testimony by former state Rep. Carolyn Justice, they also contend that lawmakers did nothing irregular or outside the scope of legislative rules when pushing H589 into law.

And they offer several justifications for the voting changes brought about by H589, including the need to “prevent voter fraud and maintain confidence in the election system.”

“As a matter of law, the provisions of H.B. 589 challenged by Plaintiffs do not in any way create unconstitutional burdens on the right to vote,” the state defendants say in court filings. “These provisions are lawful regulations regarding the time, manner, and place of elections and further rational state interests.”

Who’s on first

The list of fact witnesses and experts being offered in support of each side’s case is predictably long, but one on the state’s list is a bit of a surprise.

Tom Hofeller, the architect of the redistricting plans passed by the General Assembly in 2011and a key witness in the challenge to those plans now pending in state court, has resurfaced in the cases before Judge Schroeder, offered this time by the state as an expert in all-things voting related.

Here’s how the Atlantic Monthly described Hofeller when it grouped him in the “League of Dangerous Mapmakers” in this article:

Every 10 years, after U.S. census workers have fanned out across the nation, a snowy-haired gentle­man by the name of Tom Hofeller takes up anew his quest to destroy Democrats. He packs his bag and his laptop with its special Maptitude software, kisses his wife of 46 years, pats his West Highland white terrier, Kara, and departs his home in Alexandria, Virginia, for a United States that he will help carve into a jigsaw of disunity.

The challengers to H589 have objected to Hofeller’s appearance as an expert, saying that he is unqualified to offer the opinions he’s given – including statements regarding the effect that the elimination of out-of-precinct voting had on African-American voters and conclusions about the numbers of voter actually affected by the voting law changes in H589.

They’re also objecting to opinions being offered for the state by Sean Trende, the senior elections analyst for the website RealClearPolitics, who they say lacks the gravitas and credentials required for “expert” status.